Exhibit 10.24
DIRECTOR INDEMNIFICATION
AGREEMENT
This Director
Indemnification Agreement (the “Agreement”) is made and
entered into as of the 10th day of February, 2005, by and between
CARDTRONICS, INC., a Delaware corporation (the
“Company,” which term shall include, where appropriate,
any Entity (as hereinafter defined) controlled directly or
indirectly by the Company and any successor to the Company), and
___(“Indemnitee”).
WHEREAS ,
it is essential to the Company that it be able to retain and
attract as directors the most capable persons available;
WHEREAS ,
increased corporate litigation has subjected directors to
litigation risks and expenses, and the limitations on the
availability of directors and officers liability insurance have
made it increasingly difficult for the Company to attract and
retain such persons;
WHEREAS ,
the Company’s Amended and Restated Certificate of
Incorporation (as amended from time to time, the
“Charter”) and/or bylaws (as in effect from time to
time) provide for the indemnification of its directors and permits
it to make other indemnification arrangements and
agreements;
WHEREAS ,
the Company desires to provide Indemnitee with specific contractual
assurance of Indemnitee’s rights to full indemnification
against litigation risks and expenses (regardless, among other
things, of any change in the ownership of the Company or the
composition of its Board of Directors); and
WHEREAS ,
Indemnitee is relying upon the rights afforded under this Agreement
in accepting Indemnitee’s position as a director of the
Company:
NOW,
THEREFORE , in consideration of the promises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
(a)
“ Corporate Status ” describes the status of a
person who is serving or has served (i) as a director of the
Company, (ii) in any capacity with respect to any employee
benefit plan of the Company, or (iii) as a director, partner,
trustee, officer, employee, or agent of any other Entity at the
request of the Company. For purposes of subsection (iii) of
this Section 1(a), a director of the Company who is serving or
has served as a director, partner, trustee, officer, employee or
agent of a Subsidiary shall be deemed to be serving at the request
of the Company.
(b)
“ Entity ” shall mean any corporation,
partnership, limited liability company, joint venture, trust,
foundation, association, organization or other legal
entity.
(c)
“ Expenses ” shall mean all reasonable fees,
costs and expenses incurred in connection with any Proceeding (as
defined below), including, without limitation, reasonable
attorneys’ fees, disbursements and retainers (including,
without limitation, any such fees, disbursements and retainers
incurred by Indemnitee pursuant to Sections 9 and 11(c) of
this Agreement), fees and disbursements of expert witnesses,
private investigators and professional
advisors
(including, without limitation, accountants and investment
bankers), court costs, transcript costs, fees of experts, travel
expenses, duplicating, printing and binding costs, telephone and
fax transmission charges, postage, delivery services, secretarial
services, and other disbursements and expenses.
(d)
“ Liabilities ” shall mean judgments, damages,
liabilities, losses, penalties, excise taxes, fines and amounts
paid in settlement.
(e)
“ Proceeding ” shall mean any threatened,
pending or completed claim, action, suit, arbitration, alternate
dispute resolution process, investigation, administrative hearing,
appeal, or any other proceeding, whether civil, criminal,
administrative, arbitrative or investigative, whether formal or
informal, including a proceeding initiated by Indemnitee pursuant
to Section 11 of this Agreement to enforce Indemnitee’s
rights hereunder.
(f)
“ Subsidiary ” shall mean any corporation,
partnership, limited liability company, joint venture, trust or
other Entity of which the Company owns (either directly or through
or together with another Subsidiary of the Company) either
(i) a general partner, managing member or other similar
interest or (ii) (A) 50% or more of the voting power of the
voting capital equity interests of such corporation, partnership,
limited liability company, joint venture or other Entity, or
(B) 50% or more of the outstanding voting capital stock or
other voting equity interests of such corporation, partnership,
limited liability company, joint venture or other
Entity.
2.
Services of Indemnitee . In consideration of the
Company’s covenants and commitments hereunder, Indemnitee
agrees to serve or continue to serve as a director of the Company.
However, this Agreement shall not impose any obligation on
Indemnitee or the Company to continue Indemnitee’s service to
the Company beyond any period otherwise required by law or by other
agreements or commitments of the parties, if any.
3.
Agreement to Indemnify . The Company agrees to indemnify
Indemnitee as follows:
(a) Subject
to the exceptions contained in Section 4(a) below, if Indemnitee
was or is a party or is threatened to be made a party to any
Proceeding (other than an action by or in the right of the Company)
by reason of Indemnitee’s Corporate Status, Indemnitee shall,
to the extent permitted by applicable law, be indemnified by the
Company against all Expenses and Liabilities incurred or paid by
Indemnitee in connection with such Proceeding (referred to herein
as “ Indemnifiable Expenses ” and “
Indemnifiable Liabilities ,” respectively, and
collectively as “ Indemnifiable Amounts
”).
(b) To
the extent permitted by applicable law and subject to the
exceptions contained in Section 4(b) below, if Indemnitee was or is
a party or is threatened to be made a party to any Proceeding by or
in the right of the Company to procure a judgment in its favor by
reason of Indemnitee’s Corporate Status, Indemnitee shall be
indemnified by the Company against all Indemnifiable
Expenses.
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4.
Exceptions to Indemnification . Indemnitee shall be
entitled to the indemnification provided in Sections 3(a) and 3(b)
above in all circumstances permitted by applicable law other than
the following:
(a) If
indemnification is requested under Section 3(a) and it has been
adjudicated finally by a court of competent jurisdiction that, in
connection with the subject of the Proceeding out of which the
claim for indemnification has arisen, Indemnitee failed to act in
good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Company, or with
respect to any criminal action or proceeding, Indemnitee had
reasonable cause to believe that Indemnitee’s conduct was
unlawful, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder.
(b) If
indemnification is requested under Section 3(b) and:
(i)
it has been adjudicated finally by a court of competent
jurisdiction that, in connection with the subject of the Proceeding
out of which the claim for indemnification has arisen, Indemnitee
failed to act in good faith and in a manner Indemnitee reasonably
believed to be in or not opposed to the best interests of the
Company, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder; or
(ii)
it has been adjudicated finally by a court of competent
jurisdiction that Indemnitee is liable to the Company with respect
to any claim, issue or matter involved in the Proceeding out of
which the claim for indemnification has arisen, including, without
limitation, a claim that Indemnitee received an improper personal
benefit, no Indemnifiable Expenses shall be paid with respect to
such claim, issue or matter unless the court in which such
Proceeding was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Indemnitee is fairly and reasonably
entitled to indemnity for such Indemnifiable Expenses which such
court shall deem proper.
5.
Procedure for Payment of Indemnifiable Amounts .
Indemnitee shall submit to the Company a written request specifying
the Indemnifiable Amounts for which Indemnitee seeks payment under
Section 3 of this Agreement and the basis for the claim. The
Company shall pay such Indemnifiable Amounts to Indemnitee within
thirty (30) calendar days (or earlier if reasonably requested
by Indemnitee) of receipt of the request, unless a determination is
made within such period by (1) a majority vote of the
directors of the Company who are or were not parties to the
Proceeding giving rise to the claim, even though less than a
quorum, (2) a committee of such directors designated by
majority vote of such directors, even though less than a quorum,
(3) if there are no such directors, or if such directors so
direct, independent legal counsel in a written opinion, or
(4) by the stockholders, that Indemnitee has not met the
relevant standards for indemnification set forth in Section 3
hereof or under Delaware law. At the request of the Company,
Indemnitee shall furnish such documentation and information as are
reasonably available to Indemnitee and necessary to establish that
Indemnitee is entitled to indemnification hereunder.
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6.
Indemnification for Expenses of a Witness .
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is, by reason of his Corporate Status, a
witness in any Proceeding to which Indemnitee is not a party, the
Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection
therewith
7.
Indemnification for Expenses of a Party Who is Wholly or Partly
Successful . Notwithstanding any other provision of this
Agreement, and without limiting any such provision, to
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